- (1.) Respondents Sham Lal and Sat Pal filed a suit to pre-empt the sale made by their father Phoola respondent of the land measuring 23 Kanals being the one-fourth share of the land measuring 32 Kanals. The description of the land given in the plaint was one-fourth share of 92 Kanals consisting of khewat No. 83, khatuni No. 90, rectangle No. 60 Killa Nos. 1, 2, 3, 8, 9 and 10, khewat Nos. 124 and 125, khatuni Nos. 147 and 148, rectangle No. 59, killa Nos. 5, 6, 7 and 8, khewat No. 261 khatuni No. 355, rectangle No. 59, killa No. 4 min.
(2.) The suit was opposed by the petitioners-vendees and one of the pleas raised by them, with which only we are concerned in this petition, was that the suit was bad for partial pre-emption, the plaintiffs having not sought possession of killa No. 9, rectangle No. 59. After recording evidence of the parties, the trial Court upheld the said plea of the vendees and dismissed the suit. The pre-emptors went in appeal against the decree of the trial Court and during the pendency of that appeal, they filed an application on July 28, 1978 under Order 6, Rule 17 of the Code of Civil Procedure for permission to amend the plaint so as to delete killa No. 8, rectangle No. 59 and substitute killa No. 9 instead thereof. This application was allowed by the learned Additional District Judge, Karnal vide order dated August 2, 1978. Aggrieved therefrom, the vendees have come up in this revision petition.
(3.) It is not disputed that the lower appellate Court has the jurisdiction to pass the impugned order but it is contended that the Court has acted illegally in the exercise of the jurisdiction in passing that order and reliance for this contention has been placed on the following observations of the Full Bench in Banta Singh and others v. Shrimati Harbhajan Kaur and others, 1974 PunLJ 328:- "Where the lower appellate Court allowed the plaintiff-pre-emptor to amend the plaint at the appellate stage when the objection regarding the suit being had for partial pre-emption was raised by the vendees in their written statement and the plaintiff-pre-emptor in spite thereof, persisted in maintaining, till the suit was dismissed by the trial Court, held, the lower appellate Court committed an illegality in allowing the plaintiff to amend the plaint." I am, however, unable to agree with the contention of the learned counsel. In the Full Bench decision, the disputed sale apart from agricultural land, included six rooms whereas in the plaint only five rooms were entered. The vendees took the plea of partial pre-emption and inspite of that plea the plaintiffs never cared to amend the suit till it was dismissed by the trial Court because of partial pre-emption. In the present case, on the facts stated, it cannot be said that suit was bad for partial pre-emption. The sale was of 23 kanals of land and the plaintiffs filed a suit to pre-empt the whole of the land but while describing the land, instead of killa No. 9 killa No. 8 of rectangle No. 59, was entered. This mistake had occurred because in the certified copy of the sale deed obtained by the plaintiffs killa No. 8 was entered. In a similar situation in Sodhi Singh and others v. Basant Singh and another,1962 PunLR 633, where the extent of the land had been correctly entered in the plaint but one of the killa numbers was omitted, the amendment was allowed even after the expiry of the limitation for filing the suit for pre-emption. In the Full Bench case of Banta Singh it was observed that in Sodhi Singh's case, the total area of the land had been correctly mentioned in the suit but one of the khasra numbers was omitted inadvertently. This observation of the Full Bench clearly shows that the contention that the suit was bad for partial pre-emption was not accepted. The present case is on a better footing than Sodhi Singh's case because here the petitioners have not omitted any killa number but have only wrongly described one killa number as killa No. 8 instead of killa No. 9. As the order allowing the amendment was approved by the Full Bench in Sodhi Singh's case , it cannot be said in the present case that the lower appellate Court acted illegally in allowing the amendment on the analogy of the said Full Bench decision.;